Will college athletes unionize? A query for NLRB

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In this Sept. 21, 2013, file photo, Northwestern quarterback Kain Colter (2), wears APU for "All Players United" on wrist tape as he scores a touchdown during an NCAA college football game against Maine in Evanston, Ill.

WASHINGTON (AP) - The five-member regulatory board that will ultimately decide if Northwestern University football players can unionize has itself been in the middle of a firestorm.

The very makeup of the National Labor Relations Board has been challenged in a case now before the Supreme Court. And Republicans contend the agency has being overly friendly to organized labor.

Northwestern said Friday that it would appeal to the full NLRB a regional director's ruling that full scholarship players can be considered employees and thus have the right to form a union.

"Unionization and collective bargaining are not the appropriate methods to address the concerns these students are raising," Alan K. Cubbage, vice president for university relations, said in a statement. "The life of a student athlete is extremely demanding, but the academic side and the athletic side are inextricably linked."

The appeal is due April 9, with the response from the players April 16. There's no deadline for the full board to respond.

The current NLRB has a 3-2 Democratic majority. All five current members of the board were appointed by President Barack Obama. Members serve five-year terms.

Actually, the agency has been an easy target for opposition-party politicians in both Democratic and Republican administrations.

Once, as the board found itself without a quorum because Senate Republicans were blocking a vote on two Obama nominees, Sen. Lindsey Graham, R-S.C., suggested that "the NLRB as inoperable could be considered progress."

Sen. Orrin Hatch, R-Utah, a member of the Senate Health, Education, Labor and Pensions Committee, cites "the sorry relationship between unions, big government and the party of big government."

The Supreme Court case involves appointments that Obama made to the board in January 2012 while Congress was not in session. The Constitution gives presidents broad authority to put high-level federal officials in place without seeking Senate confirmation when the chamber is in a recess of unspecified length. Presidents of both parties have taken advantage of the provision.

But Republicans and employers who objected to NLRB decisions made by the Obama appointments contend that the Senate wasn't actually in recess when Obama made the appointments, so any decisions made by the board should not stand.

Although the court has not yet ruled, the makeup of the NLRB should not be an issue when it hears the Northwestern case.

The Senate voted last July to confirm Obama's full slate of five nominees to the NLRB. That appeared to resolve questions of the legitimacy of two of the members who had received the recess appointments.

In the Northwestern case, Peter Ohr, a regional director of the NLRB, ruled that college athletes should be considered employees under federal law, granting them the ability to unionize.

He observed that their athletic scholarships were tied directly to their performance on the field.

"Northwestern players who stood up for their rights took a giant step for justice," said former UCLA linebacker Ramogi Huma, the founder and president of the National College Players Association. "It's going to set a precedent for college players across the nation to do the same."

However, Northwestern officials and other critics of the ruling said considering student athletes to be employees of a school just because they have scholarships is far-fetched.

"Even though college sports, mainly just at the football and men's basketball division level, have become very commercialized, I don't think that justifies professionalizing college sports," said Matt Mitten, a law school professor and director of the National Sports Law Institute at Marquette University.

"It would be interesting to see how the Northwestern football players would vote. Would a majority of them want the union or not? Because by saying yes, that would make the economic value of their scholarships equivalent to wages. And they would have to pay federal income tax on that, which would be very substantial," Mitten said. "That's one of the possible downsides. Right now, athletic scholarships are not taxed."

William Gould, an emeritus Stanford law professor and former chairman of the NLRB, said the public typically isn't sympathetic toward athletes. He said historically that goes back to the days when professional athletes were organizing. "The public feels that athletes are having a nice time. They'd like to be able to play these games and get compensation for them," Gould said.

Gould said he doesn't think the public is sympathetic toward today's college athletes even when they hear of problems such as concussions.

"Look, after all, it's the public's insatiable lust for cataclysmic violence which is bound up with football and hockey that has created this," Gould said. "The owners and the universities, they'll find something that will bring people into the seats or turn the television sets on, so the public is not really focused on this."